Environment

Cathy and Anthony Stafford opened Good Boy Hotdogs behind their home along Andrew Jackson Highway in Delco, population 348. (Photos: Lisa Sorg)

Go Backstage is an occasional series explaining to readers the process of reporting and writing stories. The purpose of the series is to help readers understand the nuances of journalism and to add transparency to the process. If you’d like to know how a previous environmental story was reported, and the decisions that went into it, contact me at lisa@ncpolicywatch.com.

For more information about tonight’s public hearing in Delco, scroll to the bottom of this story.

Raise your hand if you’ve spent any time in Delco, North Carolina.

I hadn’t either, except for cruising through as a roundabout way to get from Wilmington to Riegelwood. But this hamlet in eastern Columbus County, population 348, is now at the center of an environmental justice story.

As I reported yesterday, Malec Brothers Transport, an Australian company, wants to operate a fumigation facility using a highly toxic chemical methyl bromide to kill pests in logs bound for China.

(I resisted the temptation to suggest titling the story My Chemical Bromance.)

Half of people living within a mile of the proposed facility — the area includes the tiny town of Acme and the only slightly larger Riegelwood — are Black, Latinx or American Indian.

These are primarily low-income areas. A quarter of households in Columbus County are below the federal poverty threshold.

But as Ashley Niquetta Daniels, who grew up in the area, told me, Delco residents “are humble, hard-working, decent people. They deserve to have their voices heard.”

In a previous Go Backstage post, I noted that my stories are based on documents and people. The challenge with Delco was that until I found Ashley via mutual friend on Facebook, I could find no one in the town who even knew the fumigation facility was in the works.

That’s often the case. In general, people don’t have the time to peruse the NC Department of Environmental Quality’s public hearings/comments list, which is how I learned about the proposal. People may not even know it exists. (Here’s the link for future reference.) After a long day at work, most folks wouldn’t have the energy to decipher arcane air permits. Cathy and Anthony Stafford, for example, are busy running a small business, Good Boy Hotdogs, behind their home.

This is the information gap the media and community leaders are supposed to fill.

Ashley Niquetta Daniels (Courtesy photo)

While I often curse Facebook for its privacy breaches, in this case, it led me to Ashley via former colleague Fiona Morgan of News Voices North Carolina. The nonprofit helps engage local communities and connect newsrooms with the public. Fiona tagged me in a video Ashley posted to get the word out about the fumigation facility. Now I had a community connection. Without Ashley — and Fiona — the story would have been less engaging.

As for the documents, correspondence in the permit applications often illuminates the conflict between the polluter and the regulator. For example, the exchange DEQ and Malec Brothers was particularly interesting because it contained bewildering information: Workers at the fumigation facility would seal off leaks from the shipping containers using “sandbags, duct tape, etc.,” which supposedly is the industry standard in Australia.

In addition to speaking with DEQ, I interviewed James Harris, the CEO of Malec Brothers’ US operations. He politely answered my questions. But it’s also my job to challenge his answers or to put them in context. When Harris said there had been two public hearings on the facility, he was being factual. But the truth and the facts aren’t necessarily the same.

Harris failed to mention that these hearings were part of the county’s planning board and board of adjustment meetings — to most folks, arcane governmental bodies that rarely draw large turnouts for much of anything. Those boards also meet in Whiteville, 28 miles from Delco, where there were no public meetings about the facility. This hardly qualifies as public outreach.

I pored through the relevant scientific literature and government reports. Through a serious of random online searches, I located a scientist in New Zealand who had published articles in peer-reviewed journals about the health effects of methyl bromide. Because of his schedule and the time difference — New Zealand is 16 hours ahead — I had to call him at 1 in the morning, my time. (My first question to him: “How is tomorrow?” His reply: “Wonderful.”)

Finally, the time came to write. The 2,500-word story took about eight or nine hours, including factchecking. Until the seventh hour, I had not interviewed Ashley, but had the rest of the story built. Ashley was assertive, informed and inspiring. That’s when I knew I had the piece I had hoped for.

The Rev. Rodney Sadler led his colleagues on the NC DEQ Secretary’s Environmental Justice and Equity Advisory Board in a non-denominational prayer. (Photo: Lisa Sorg)

Over six tense weeks in the fall of 1982, 550 people were arrested in Warren County, some of them after lying in front of dump trucks loaded with PCB-laden soil bound for a landfill built by the State of North Carolina. With the full support, encouragement even, of then-Gov. Jim Hunt, the state had created the landfill in a largely Black neighborhood to dispose of PCBs, a known carcinogen, from the Ward Transformer site in Raleigh.

Those mass acts of civil disobedience launched the modern environmental justice movement. Yet it’s taken 36 years for a governor and an environmental secretary to create an advisory board to address the persistent problem of environmental injustice in North Carolina.

Cancer researcher and scientist Marian Johnson-Thompson is vice-chair of the Secretary’s Environmental Justice and Equity Advisory Board: “This panel is another great day for North Carolina,” she said. “Our state is serious about addressing the environmental needs of all North Carolinians.” Seated left to right in the back row: Yu Ying, Randee Haven O’Donnell and the Rev. Rodney Sadler Jr. Front row: NC DEQ Secretary Michael Regan (Photo: Lisa Sorg)

Department of Environmental Quality Secretary Michael Regan announced the membership of the Environmental Justice and Equity Advisory Board today. Its 16 members, inclusive of diverse racial, ethnic, gender and socio-economic backgrounds, plans to meet quarterly. Its charge is to advise Regan and DEQ on how to ensure all North Carolinians can enjoy clean air, water and land in their neighborhoods.

Since appointed by Gov. Cooper, Regan said his priority “has always been same — to redefine the agency’s purpose. It’s no secret that I wasn’t satisified with the mission we inherited. It downplayed the protection of people and no, it did not reflect my vision and the governor’s vision of inclusivity.”

Regan said the board reflects the agency’s new mission. “We are providing science-based environmental stewardship for the health and prosperity of all North Carolinians. Environmental fairness and equity for all is not just a soundbite, a feel-good exercise. It’s an achievable goal for all parts of our state. But we have some work to do.”

However, no one on the board is from the communities affected by coal ash. Deborah Graham and Amy Brown, who live within a half-mile of coal ash ponds, said they were disappointed in the omission.

“How can you be our voice when you haven’t felt our pain?” Brown said. “Why wouldn’t you choose a real coal ash neighbor?”

Graham and Brown likened this board to the Science Advisory Board, which recently met, inexplicably, in Newton to discuss hexavalent chromium, a component of coal ash. In part, because Newton is not an affected coal ash community, few people attended the meeting and no one spoke publicly.

“We could have gotten people out,” Graham said. “Apparently our voice is not being heard.”

The environmental justice issues facing North Carolina range from the mountains to the coast: wood pellet plants, Superfund sites, the proposed fumigation facility that would emit highly toxic methyl bromide in Delco; the Atlantic Coast Pipeline in eastern North Carolina and the Mountain Valley Pipeline, which was just announced for the Piedmont.

The board’s membership includes academics, such as chairperson James Johnson Jr., a UNC professor who studies sustainable communities, as well as scientists, including Marian Johnson-Thompson, a cancer researcher, microbiologist and educator.

Nonprofits also are well-represented. Jamie Cole is the Environmental Justice, Air, and Materials policy manager at the NC Conservation Network. Naeema Muhammad of the NC Environmental Justice Network is a driving force behind the protection of neighbors of industrialized hog farms.

Vice-Chairperson Marian Johnson-Thompson said she hoped the board will “serve as a model for other states’ approaches to addressing environmental justice.”

“We’re put here on this earth to live and to take care of it,” said board member Jeff Anstead of the Haliwa-Saponi Indian tribe. “That’s our job.”

Photos taken inside one of the hog barns at Kinlaw Farms and presented to the jury in the case of McKiver vs. Smithfield Hog Production Division (Photos from court filings)

For an industry used to getting its way, the jury’s verdict was a stunning rebuke.

On Thursday in federal court, the jury awarded 10 plaintiffs who live adjacent to an industrialized hog farm $75,000 each in compensatory damages, plus another $5 million apiece for punitive damages. The total: Upward of $50 million, an historic amount, assessed against Murphy-Brown/Smithfield Foods, the world’s largest pork producer.

Kinlaw was not the defendant; the hogs are owned by Murphy-Brown/Smithfield, and Kinlaw is responsible for raising them, but every other part of the farm’s operation is dictated by the company.

Because of a state law capping damages a jury can award, the breathtaking figure might not survive a legal challenge and could be reduced. But for the residents — most of them, related — of Pearl Lloyd Road in rural Bladen County, the judgment carries not only tangible benefits but also symbolic ones.

The case pitted North Carolina’s behemoth hog industry — the second-largest in the nation — against working-class, rural Black families. Murphy-Brown/Smithfield wields enormous power: in the legislature, in local governments, in politics, even at universities. But one place where the hog industry is on slippery footing is before a jury. Because jurors can look at a tornado of buzzards circling a dead box, can view photos of hogs wading in their own feces and urine, can listen to the dispassionate scientific testimony and the passionate narrative of the plaintiffs. Jurors can evaluate the evidence — and they can empathize.

For years, the plaintiffs testified, life next to Kinlaw Farms has been hellacious: Acrid odor from the lagoons and the manure spray fields barges into their yards and homes. Flies swarm, and buzzards loiter in their yards, waiting to feast on hog carcasses in the farm’s dead box. Scientists found DNA from hogs’ fecal bacteria on the side of their homes. All of this, they testified — and photos shown the jury from inside the filthy barns amplfied the point — harmed their property values and eroded their quality of life.

Murphy-Brown/Smithfield, the plaintiffs’ attorneys argued, has the money — $452 million in operating profits — to upgrade their farms’ lagoon systems to reduce the odor and the nuisance, but have chosen to take the cheaper way out.

The jury agreed. But the 10-person panel could have stopped there, awarding merely compensatory damages for quality-of-life issues. Instead, jurors determined that the evidence met a higher threshold. To award punitive damages, jurors had to find that the company “committed fraud, or acted with malice, or engaged in willful or wanton conduct” — which indicates how appalled they were. Read more

This is a developing story and will be updated tomorrow.
This post has been updated with more information about the law regarding punitive damages.

A jury deliberated for less than two days before awarding 10 plaintiffs $50 million in a hog nuisance lawsuit against Murphy-Brown/Smithfield Foods, the world’s largest pork producer.

According to the verdict sheet, the jury unanimously agreed that Murphy-Brown, which owns the hogs at Kinlaw Farms in Bladen County, “substantially and unreasonably interfered with the plaintiff’s use and enjoyment of their property.” The jury awarded each of the plaintiffs $75,000 on those grounds. But the jury also had the latitude to award punitive damages. They did so: $5 million for each plaintiff. In sum, the plaintiffs, ranging in age from their teens to 85, were awarded a total of $50.7 million.

“We are pleased with the verdict,” said Mona Lisa Wallace of Wallace and Graham law firm in Salisbury, in a prepared statement. The firm represented the plaintiffs, and Michael Kaeske argued the case. “These cases are about North Carolina family property rights and a clean environment. I am grateful for the hard work of our co-counsel, Mike Kaeske, and the others who worked on this trial. We are now preparing for the next which is scheduled for the end of May.”

At least a half-dozen more trials related to nuisances from industrialized hog farms are scheduled through the fall.

Smithfield Foods, a $15 billion global food company, issued a statement in response to the verdict, which the company said it will appeal to the Fourth Circuit Court. Here it is in full:

“We are extremely disappointed by the verdict. We will appeal to the Fourth Circuit, and we are confident we will prevail. We believe the outcome would have been different if the court had allowed the jury to (1) visit the plaintiffs’ properties and the Kinlaw farm and (2) hear additional vital evidence, especially the results of our expert’s odor-monitoring tests.

These lawsuits are an outrageous attack on animal agriculture, rural North Carolina and thousands of independent family farmers who own and operate contract farms. These farmers are apparently not safe from attack even if they fully comply with all federal, state and local laws and regulations. The lawsuits are a serious threat to a major industry, to North Carolina’s entire economy and to the jobs and livelihoods of tens of thousands of North Carolinians.

From the beginning, the lawsuits have been nothing more than a money grab by a big litigation machine. Plaintiffs’ original lawyers promised potential plaintiffs a big payday. Those lawyers were condemned by a North Carolina state court for unethical practices. Plaintiffs’ counsel at trial relied heavily on anti-agriculture, anti-corporate rhetoric rather than the real facts in the case. These practices are abuses of our legal system, and we will continue to fight them.”

The original jury pool of 40 or so people was roughly 50 percent Black. But after Smithfield attorneys finished their challenges to the jurors, the final 10-person panel was predominantly white. (A 12th juror, also white, became ill early in the trial and could not continue serving; another juror was excused because they knew one of the witnesses..) All of the plaintiffs are Black. Most are related and live in modest homes adjacent to Kinlaw Farms, which raises 15,000 hogs owned by Murphy-Brown/Smithfield Foods. Next door, Don Butler, a retired corporate executive for Murphy-Brown/Smithfield lives on a palatial estate where he raises horses. (This is a different Don Butler than the one that worked for Murphy-Brown.)

Attorney Mark Anderson, who represented Murphy-Brown, cited state law that caps the amount of punitive damages. He said that punitives can’t be more than three times the compensatory damages — in this case, $225,000 per plaintiff — or $250,000, whichever is higher. If the jury awards more than that amount, the trial court is supposed to reduce the award to the maximum amount.

However, Michelle Nowlin, clinical professor of law and supervising attorney for the Environmental Law and Policy Clinic at Duke University, said the standards could be different because this trial was held in federal court, not state court. But if the ratio of compensatory to punitive damages is more than 1 to 10, then the award could be reviewed; the extra damages aren’t prohibited, but do receive additional scruinty. If that standard applies in this case, the punitive awards could be capped at $750,000 per plaintiff.

Update: Nowlin later added that the state statute does apply. Some other states have found caps to be unconstitutional, but North Carolina is not one of them. In other states, judges have the discretion to uphold a jury’s award, as long as the judge determines the award is not “excessive.” In North Carolina, though, the judge does not have this discretion.

The state statue also prohibits the attorneys and the court from informing the jury of the cap on punitive damages.

Nowlin was not involved in the case, but is an expert in agricultural law and policy, and led the Southern Environmental Law Center’s Hog Industry Project.

Nonetheless,, Nowlin wrote in an email. “to award any punitive damages, the jury was required to find that the company committed fraud, or acted with malice, or engaged in willful or wanton conduct.”

“This is a significant victory for the community members who live next to these factory feedlots,” she said in a written statement. “They have suffered indescribable insults, not just from the immediate impacts of the feedlots themselves, but also from decades of government failure to come to their aid. Litigation was their last chance for justice, and this verdict and award will help them move forward.”

An endangered red wolf in the wild on the Albemarle Peninsula. The wolf is wearing a collar to help wildlife officials track it. Fewer than 40 red wolves exist in the wild in the US, all of them in northeastern North Carolina. (Photo: Game camera from Wildlands Network)

A red wolf pup born in the wilderness of northeastern North Carolina today would probably die before finishing its natural lifespan, according to a five-year status review issued by the US Fish and Wildlife Service this week. The red wolf, which federal officials have designated as endangered, could be extinct in the wild within eight years. Wolves in the wild can live as long as 13 years. In captivity, the median lifespan is 10 years.

Currently, the wolf population is “declining more rapidly than the worst-case scenarios described in the most recent Population Viability Analysis,” the status review reads. “It is obvious that there are significant threats” to the wolves in eastern North Carolina and “conditions for recovery of the species are not favorable and a self- sustainable population may not be possible.”

Fewer than 40 red wolves are left on the Albemarle Peninsula in northeastern North Carolina, their native habitat, down from a peak of 200 animals 15 years ago. And humans are largely behind the wolves’ demise: The animals increasingly have been shot, poisoned and hit by cars, “causing the population to decline to a critical level.” (USFWS uses more clinical language — “anthropogenic mortality,” which distances humans from their actions.)

With fewer potential mates, the wolves have also interbred with coyotes imported from other states — by humans. Sea level rise, another human-induced phenomenon, also threatens the wolves’ habitat.

However, critics of the agency note that USFWS failed to accept any responsibility for its role in the wolves’ demise. And some scientists have questioned whether the wolves’ failure to thrive in the wild is a self-fulfilling prophecy — a ruse to move the remaining animals to zoos.

“We’re disappointed that the five-year status review appears to take great pains to describe the North Carolina wild population of red wolves as unsustainable, without acknowledging the fact that the decision by FWS leadership to functionally abandon the program is what has led to the striking recent declines in red wolf numbers since 2012,” said Ron Sutherland, a conservation scientist based in Durham. “They stopped releasing new wolves from captivity. They stopped managing coyotes. And they’ve sat back and watched as gunshot mortality shredded the red wolf population.”